Texas Register

TITLE 26 HEALTH AND HUMAN SERVICES
PART 1HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 261INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID) PROGRAM--CONTRACTING
SUBCHAPTER KEMERGENCY RULES FOR THE ICF/IID PROGRAM
RULE §261.351Emergency Rule Related to Leave During the COVID-19 Pandemic
ISSUE 02/12/2021
ACTION Emergency
Preamble No Rule Available

(a)The following words and terms, when used in this section, have the following meanings.

  (1)COVID-19 therapeutic leave--Leave described in a state plan amendment approved by the Centers for Medicare and Medicaid Services for payment to providers for reserving a bed in a facility for an individual who takes a temporary leave of absence to reduce the risk of COVID-19 transmission.

  (2)Extended therapeutic leave--Leave described in §261.226(c) of this chapter (relating to Leaves).

  (3)Facility--An intermediate care facility for individuals with an intellectual disability or related conditions.

  (4)Full day--A 24-hour period extending from midnight to midnight.

  (5)HHSC--The Texas Health and Human Services Commission.

  (6)Individual--A person enrolled in the ICF/IID Program.

  (7)Program provider--An entity with whom HHSC has a provider agreement.

  (8)Provider agreement--A written agreement between HHSC and a program provider that obligates the program provider to deliver ICF/IID Program services.

  (9)Revenue--This term does not include a loan or grant that a program provider is required to repay.

  (10)Special leave--Leave described in §261.226(d) of this chapter.

  (11)Staff member--An employee or contractor of a program provider.

  (12)Therapeutic leave--Leave described in §261.266(b) of this chapter.

(b)If an individual is absent from a facility for one full day and such absence is not during a therapeutic, extended therapeutic, COVID-19 therapeutic, or special leave, the program provider must discharge the individual from the facility.

(c)COVID-19 therapeutic leave is in addition to the days allowed for therapeutic leave or extended therapeutic leave.

(d)If an individual takes COVID-19 therapeutic leave, the program provider must ensure that the individual's individual program plan specifies that the individual was absent from the facility to reduce the risk of COVID-19 transmission.

(e)A program provider must submit an HHSC bed hold payment attestation form, as described in subsection (f) of this section, and a request for payment for COVID-19 therapeutic leave to HHSC on or before April 30, 2021.

(f)For a program provider to receive payment for COVID-19 therapeutic leave, the program provider must submit a completed HHSC bed hold payment attestation form on or before the date the program provider requests payment for COVID-19 therapeutic leave. By signing an HHSC bed hold payment attestation form, a program provider:

  (1)acknowledges that HHSC may recoup an overpayment made to the program provider if:

    (A)HHSC determines, based on a federal or state audit or any other authorized third-party review, that the program provider:

      (i)received an inappropriate payment, such as payment for more days than allowed for COVID-19 therapeutic leave;

      (ii)received duplicate payments for services, such as payment for COVID-19 therapeutic leave for a day on which HHSC paid the program provider for therapeutic, extended therapeutic, or special leave; or

      (iii)received funding from any other source to pay for the days of COVID-19 therapeutic leave for which payment is requested; and

    (B)the program provider's revenue for the quarters described in the state plan amendment exceeded its revenue:

      (i)during the quarter of December 2019 through February 2020; or

      (ii)an alternative pre-pandemic period authorized in writing by HHSC based on a request from the program provider; and

  (2)attests that, during the time period for which payment is requested, the program provider:

    (A)did not lay off any staff members who were working on March 19, 2020, due to lack of work, not work performance; and

    (B)maintained staff member wages and benefits at least at the levels that existed on March 19, 2020.

(g)When submitting a request for payment, a program provider must use the designated leave code that identifies the request as payment for COVID-19 therapeutic leave.

(h)If HHSC determines, based on a federal, state, or third-party review or audit, that a program provider is not in compliance with this section or the program provider makes an attestation described in subsection (f)(2) of this section that is inaccurate, HHSC recoups payment made for COVID-19 therapeutic leave from the program provider.

(i)An HHSC bed hold payment attestation form covers payments for COVID-19 therapeutic leave requested only for the dates identified on the form. A program provider must submit a separate form for each provider agreement that the program provider has with HHSC.

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 29, 2021

TRD-202100412

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: January 29, 2021

Expiration date: May 28, 2021

For further information, please call: (512) 438-4287



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